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Watching the Watchers

The Children - Part Two

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Published: Thursday, 27 December 2018 08:26

Written by Dr Russell Pridgeon - Family Court Hero

It would be normal to think of people who rescue children from ongoing child sexual abuse, where there is a great cost to themselves, as decent, upstanding people, worthy of praise. In Australia, such is the official culture of tolerating child rape, those people who try to protect children from abuse are harassed, intimidated, arrested, prosecuted and jailed.

Child protectors and their organisations are being bullied, hamstrung and dismantled: only paedophiles could possibly benefit from these actions: this is a very dark moment in the history of the Australian Federal Police.

At every level, child sexual abuse is minimised, denied, covered up and the processes of law that should protect children are subverted and corrupted. Those who are paid to protect children use any excuse not to act.

I have written to you previously about (the children), who are in the custody of their father, (the abusive father), since they were apprehended with their mother after being fugitive for (redacted) years.

I have expressed my gravest fears for the safety and wellbeing of (the children) and begged you to immediately rescue them and place them in a place of safety.

You are directly responsible for the safety and wellbeing of these children, yet you have done nothing.

As I have explained before, these children have made disclosures about their father, (the abusive father) physically and sexually abusing them, to professionals, family and friends, on more than 40 occasions. Twelve Court appointed supervisors also heard the children disclose their abuse during supervised visits with (the protective mother). These would have been mandatorily reported. There is more than enough prima face evidence to take these children away from (the abusive father).

Not to do so is an unspeakable act, and it places you in an absolutely untenable position.

Your Department keeps saying that their legal advice is that they cannot act, which is quite contrary to the advice I have received from a Queensland Barrister at Law, specialising in Family Law:

Your failure to do your duty is indefensible and exposes your department to legal action for gross negligence given the fact that the children made so many disclosures to third parties, and there is medical evidence that corroborates what these children have said.

YET YOUR DEPARTMENT USES ANY EXCUSE NOT TO ACT!

I have been contacted by Wendy Shields, who I am advised is a senior person in the Department of Child Safety. She advised that there were strong counter views, opposing my concerns about the twins.

I believe I can explain to you where these “counter views” may come from and why these “counter views” are wrong.

1. The orders made in the Family Court were made on the basis that the mother was unacceptable risk to the children because apparently:

“… there is an unacceptable risk to the emotional and psychological wellbeing of these children if they were to continue to live with the mother… directly affect[ing] the children and their right to a meaningful relationship with the father.” (Reasons for Judgment, 9 December 2011, point 97)

The risk to the children, according to the Family Court therefore, is emotional and psychological risk apparently to the children's right to a “meaningful relationship with the father who has been accused of sexually abusing (the children). However, I am reliably informed that according to law, this statement cannot be relied upon as a fact that the mother is a risk of emotional and psychological abuse to the children OR that the father is not risk to the children of sexual abuse. Please note that according to law, that is, statute, the following provision provides that:

Evidence Act 1995 (Cth) section 91.

Exclusion of evidence of judgments and convictions

(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.

(2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.

Note: Section 178 (Convictions, acquittals and other judicial proceedings) provides for certificate evidence of decisions. So the statement in the judgment above cannot be used to state as a fact that the mother, not the father is a risk to (the children).

Please note, the same judge also wrote:

“The orders are not long term. The orders are orders to provide protection for the children until such time as full inquiry can be made in relation to this matter and to ensure that the children's best interests in the long term can be met.”

To the present time there has been no full enquiry made, and your Department has not done so, despite legislative mandate that it is the function of your Department.

2. The Family Court cannot investigate child sexual abuse or any abuse allegation. In case you don't know, the previous Chief Justice of the Family Court said, "[Australian] family courts are not forensic bodies. They do not have an independent investigatory capacity or role when violence or abuse is alleged ... Family courts are reliant upon other agencies, particularly child welfare departments and police, to undertake investigations into matters that may be relevant to the proceedings before it. And although the Court can make directions as to the filing of material and can issue subpoenas compelling the production of documents, it cannot order state agencies to undertake inquiries into particular matters. It is hardly an ideal situation but in the absence of the Commonwealth assuming responsibility for child protection from the states, that will continue to be the reality.”

(The Hon. Diana Bryant, Chief Justice, Family Court of Australia, ‘Family Violence, Mental Health & Risk Assessment in the Family Law System’, Speech delivered at the Public Lecture Series, Queensland University of Technology, Brisbane, 21 April 2009).

This means that not only is the judgment in this case not evidence supporting any “strong counter views, opposing my concerns about (the children)”, but the admission by the Family Court itself through their previous Chief Justice that the Family Court does not have the investigatory powers to support the “strong counter views, opposing my concerns about the twins”. Incidentally, this view was also repeated also by the previous Deputy Chief Justice John Faulks (Keynote Address delivered by the Hon. John Faulks Deputy Chief Justice Family Court of Australia, 6 May 2010, National Convention Centre, Canberra).

3. This case has not been properly investigated either by your Department, the police or the family law system (the latter coincidentally has no power to investigate it).

None of the adults who heard the disclosures were permitted or asked to testify in ANY court. Only one person, of all the fourteen trusted adults who heard and reported the children’s disclosures was ever interviewed by the Police. Of the twelve court appointed supervisors who heard the disclosures NONE was ever interviewed.

Minister, it must surely be obvious to you that there has been something terribly terribly wrong here.

4. The father, (the abusive father), who (the children) disclosed was abusing them, used the sole defence that the children had been coached by their mother who was mentally ill. This sole defence is actually part of the culture of the family law system.

What has happened is that judges of the family Court had come to believe that the closures by children are evidence of “coaching” and this concept of coaching is the brainchild of man called Dr Richard Gardner, who self-published his ideas in the 80s and 90s (Meier J, ‘A Historical Perspective on Parental Alienation Syndrome and Parental Alienation’ Journal of Child Custody, Vol. 6, 232-257). This coaching idea had been legally discredited in United States since 2000 (The People of the State of New York Plaintiff) v. Michael Fortin, Defendant, 184 Misc,2d 10 (2000) 706 N.Y.S.2d 611.

Yet it still informs the judgements of the Australian Family Court.

This “coaching” or the popularly known “alienation” idea has never been properly tested in open court in Australia. Nonetheless, in 1990 this alienation idea began to be presented to the judges of the Family law system at their annual conference (‘Parental Alienation’, Background Briefing, ABC radio, Sunday, 18 February 2007, 9 AM). This was not in open court and has infiltrated the judiciary to such an extent that there appears to be a general rule among the family law system that when children make disclosures of sexual abuse, it is viewed as evidence of alienation instead. I am reliably informed that the High Court of Australia has warned and specifically stated that:

“…a court cannot adopt such a general rule based only on the court's own researches suggesting the existence of a body of skilled opinion that would support it.” (Aytugrul v Queen [2012] HCA 12, point 22, seeing also point 44).

Furthermore, in light of the false allegation against the mother of coaching and being the parent who presents as a risk to the children, how did she “coach” the children to bleed from the bottom??

5. The mother has been unfairly and illegally painted as being mentally unwell because she believed the things her children have told her.

Numerous court-ordered psychological and psychiatric evaluations showed the mother to have depression and anxiety caused by the domestic violence under which she lived with the father, but she was otherwise completely psychologically normal. The twins continued to disclose their ongoing abuse for years after the mother's only contact with them was so closely supervised so that she had absolutely no chance of coaching these children.

I have articulated above in this letter that in the Family Court, allegations of coaching or alienation by the protective parent is the standard defence raised by abusers to explain the disclosures of sexual abuse made by abused children due to the belief that coaching or alienation is a scientifically verified truth; it is not. In fact, Dr Richard Gardner had no empirical basis to support his notion and had to self-publish his “research”. Subsequently, no proper proof or direct evidence is required by the court: the allegation of coaching stands as its own proof. The normal rules of evidence in normal Australian Courts of Law are also required in Family Court, but they are not consistently applied (see McGregor v McGregor [2010] FamCAFC 69, point 85 “… the application of s 69ZT(1)(c) is confusing”). This is despite the fact that according to the Family Court's own submissions to the Australian Legal Reform Commission, they absolutely should be, especially in cases of abuse and violence (ALRC Report 102, Uniform Evidence Law, 2005, page 696-697, point 20.73 “however, the Court noted that there are family law matters where, notwithstanding the proposal no longer to apply the rules of evidence, is the application of the provisions of the Evidence Act 1995, (Cth) to the appropriate, such cases involving allegations of child sexual assault or domestic violence.”

6. The Family Law Act 1975 orders are subservient to child state welfare laws. Your Department keeps saying that their legal advice is that they cannot act, which is quite contrary to the reliable information I have been given.

Please note, in the Family Law Act section 69ZK it states:

Child welfare laws not affected

(1) A court having jurisdiction under this Act must not make an order under this Act (other than an order under Division 7) in relation to a child who is under the care (however described) of a person under a child welfare law unless:

(a) the order is expressed to come into effect when the child ceases to be under that care; or

(b) the order is made in proceedings relating to the child in respect of the institution or continuation of which the written consent of a child welfare officer of the relevant State or Territory has been obtained.

(2) Nothing in this Act, and no decree under this Act, affects:

(a) the jurisdiction of a court, or the power of an authority, under a child welfare law to make an order, or to take any other action, by which a child is placed under the care (however described) of a person under a child welfare law; or

(b) any such order made or action taken; or

(c) the operation of a child welfare law in relation to a child.

(3) If it appears to a court having jurisdiction under this Act that another court or an authority proposes to make an order, or to take any other action, of the kind referred to in paragraph (2)(a) in relation to a child, the first-mentioned court may adjourn any proceedings before it that relate to the child. Therefore, you cannot say that you have received credible legal advice that the Department cannot take action.

7. Any action taken by Department is protected by the Commonwealth Constitution.

Please note, the Commonwealth Constitution states at 118 that:

“Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State.”

Therefore, the federal courts, and this includes the Family Court or any federal court that hears cases under the federal Family Law Act, must give “full faith and credit” to the laws, public and records and judicial proceedings of the States. In this case this would be Queensland, and the Department needs to take this to the Children's Court to apply to have the children made wards of the State and do a proper investigation and assessment as to the risks to the children of sexual abuse. To not do so exposes your Department to nonfeaseance or misfeasance (the omission of failure by a public body to do something which that public body has power to do).

In addition to all this, I also have been reliably informed that the power of child protection remain in the States and Territories and not in the Federal jurisdiction. Please note, I have read in another Family Court case that ”

“Strictly speaking protecting children on an ongoing basis and enforcing the laws against child sex crimes is a state not federal government responsibility.”

(Murphy v Murphy [2007] FamCA 795, at point 125).

The above represents the legal advice that I have been given, it is clear that the legal advice you have been given is incorrect.

Minister, have you learnt nothing from the Royal Commission into Institutionalised Responses to Child Sexual Abuse? The cardinal message of the Commission is that THE CHILDREN MUST BE BELIEVED when they disclose abuse.

As we have found so often, when appealing to the authorities who are charged with the protection of children: THEY USE ANY EXCUSE NOT TO ACT, as your department is doing now.

I have asked the persons to whom I have sent this letter not to publish it on the internet, it is my hope that you will do the only decent and honourable thing, as your duty demands, to rescue these children immediately.

However the appalling facts of the Family Court ordered trafficking of these children for years of sexual abuse is well known nationally and internationally. Australia is rapidly gaining a reputation as country where protective parents are prosecuted and jailed (and many have been) while the abusers are untroubled by the law, and through the Family Court receive custody of the children who have disclosed their abuse and so are enabled to continue their abuse.

Again I say to you: there has been a catastrophic failure to protect these children, they have endured years of torturous rape as a consequence of this. Your decision today is whether you want to go down in history as a party to child rape or whether you wish to rescue these children without a moments delay.

There are two crimes here: the crime of child rape, and the crimes of those who subverted the investigation and prosecution of the rape and enabled the abuse to continue for years. Again, I am absolutely begging you to act immediately, without warning, and retrieve these children to a place of safety, where they can once more be safe.

I have received another legal opinion which may merit your consideration:

Failure to act can only be viewed as nonfeasance where your lack of action as Minister of Child Safety, including lack of instruction to your department, has caused harm. Your awareness of this controversy requires appropriate, reasonable and timely remedy. The failure to act under your duty and responsibility to uphold the law for the protection of the children can only be viewed by a reasonable man as the tort of nonfeasance. You have a duty of care toward the abused children, you have so far failed to act on that duty within a reasonable time, and this failure to act has likely resulted in further abuse. Respectfully, your failure to take affirmative steps to prevent harm has created a personal liability to yourself in your personal capacity, as there is an absolute pre existing expectation and relationship between your role as Minister and the protection of public members, inclusive of these children.

Your nonfeasance is due to your lack of preventative intervention using Section 91 of the Family law Act, (to intervene in the public interest), and your awareness of the misfeasance employed by the Child Safety department and (redacted) CPIU, where they have not investigated the children’s allegations, (inclusive of new evidence), according to protocol. This has caused harm through subjecting the children to their perpetrator, further probable abuse, not assisting in their recovery, and delaying a risk management approach which facilitates safeguards.

Your nonfeasance is also supported by the fact that your department is continuing to permit the family court to determine cases where child protection matters are the paramount consideration.

I claim and repeat that this Federal court is acting with State powers it does not have. The State power of Child Protection has never been conferred to the Family Court. If your department continues to ignore this you are willingly endorsing your continued nonfeasance. The Family Court is systematically refusing to respect the FLA, 60CC, (2A), in many cases, and is instead enforcing contact over protection. This is unlawful, absolute misfeasance and unconstitutional.

For the sake of good governance in accordance to our constitution I request your immediate remedy of this controversy through complying with your duty and responsibility to intervene using Section 91 of the FLA and by upholding the Rule of Law for the protection of these children.

I hope this is helpful to you in making your mind up to act without further delay.